MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- Curtin
63. The First Claimant claims that the act of flying a drone directly over the Wyton Site is a trespass. In the early phase of this litigation, I refused to grant an interim injunction to restrain drone flying (see Interim Injunction Judgment [111]-[115]). 64. The only authority cited by the Claimants in support of the claim that flying a drone over land amounts to trespass is the first-instance decision of Bernstein -v- Skyviews & General Ltd [1978] QB 479 . The case concerned an aircraft that the defendant flew over the claimant’s land for the purpose of taking a photograph the claimant’s country house which was then offered for sale to him. The claimant alleged that, by entering the airspace above his property to take aerial photographs, the defendant was guilty of trespass (alternatively that the defendant was guilty of an actionable invasion of his right to privacy by taking the photograph without his consent or authorisation). The claim failed. The Judge held that an owner’s rights in the airspace above his/her land were restricted to such height as was necessary for the ordinary use and enjoyment of the land and structures upon it, and above that height s/he had no greater rights than any other member of the public. Accordingly, the defendant’s aircraft did not infringe any rights in the claimant’s airspace and thus did not commit any trespass by flying over land for the purpose of taking a photograph. 65. Griffiths J considered the authority of Kelsen -v- Imperial Tobacco Co. [1957] 2 QB 334 , which concerned a sign that was overhanging the claimant’s land by about 8 inches. He quoted part of the judgment of McNair J which held that the overhanging sign was a trespass to the claimant’s airspace above his land, and held (at 486E-487A ):
“I very much doubt if in that passage McNair J was intending to hold that the plaintiff’s rights in the air space continued to an unlimited height or ‘ad coelum’ as [the plaintiff] submits. The point that the judge was considering was whether the sign was a trespass or a nuisance at the very low level at which it projected. This to my mind is clearly indicated by his reference to Winfield on Tort , 6th ed. (1954) in which the text reads, at p. 380: ‘it is submitted that trespass will be committed by [aircraft] to the air space if they fly so low as to come within the area of ordinary user.’ The author in that passage is careful to limit the trespass to the height at which it is contemplated an owner might be expected to make use of the air space as a natural incident of the user of his land. If, however, the judge was by his reference to the Civil Aviation Act 1949 and his disapproval of the views of Lord Ellenborough in Pickering -v- Rudd (1815) 4 Camp 219 , indicating the opinion that the flight of an aircraft at whatever height constituted a trespass at common law, I must respectfully disagree. I do not wish to cast any doubts upon the correctness of the decision upon its own particular facts. It may be a sound and practical rule to regard any incursion into the air space at a height which may interfere with the ordinary user of the land as a trespass rather than a nuisance. Adjoining owners then know where they stand; they have no right to erect structures overhanging or passing over their neighbours’ land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty. But wholly different considerations arise when considering the passage of aircraft at a height which in no way affects the user of the land.”
66. Griffiths J then noted that, in both Pickering -v- Rudd and Saunders -v- Smith (1838) 2 Jur 491 , the Court had rejected a submission that sailing a hot air balloon over
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